transcanada

Energy companies are notorious for their insistence and tenacity in creating new pipeline projects. Just look at TransCanada’s reviled Keystone XL, which took nine years to win approval earlier this month by Nebraska regulators, although the project’s future still hangs in the air.

The fact is, despite the damage they continue to cause to human health and the environment, investment in oil and gas industry infrastructure remains stable. The United States has the largest network of energy pipelines in the world, with more than 2.5 million miles of pipe on or underground. The American Petroleum Institute, one of the most powerful lobbying arms of the fossil fuel industry, estimates that investment in oil and gas will remain more than $80 billion annually until after 2020, at which point it will decrease to $60 billion by 2025.

Readers may find this continued support for fossil fuels surprising, not least given that global oil prices have fallen sharply over the past couple of years. Pipelines remain extremely dangerous and unreliable. Nonetheless, projects are continuing apace, as demonstrated by the industry’s relentless efforts to battle against and wear out protesters from the Keystone XL to the Dakota Access Pipeline.

For example, Enbridge Energy, from Canada, is proposing a replacement of its old Line 3 pipeline in Minnesota, which was installed in the 1960s and is now considered too costly to remove. Instead, the company is seeking to build a new $7.5 billion pipeline to replace it. To make matters worse, all of the crude oil that doesn’t leak from Line 3 will be burned, releasing a vast stream of carbon into the atmosphere.

Meanwhile, Energy Transfer Partners, the Fortune 500 company that is building the Dakota Access Pipeline across the Standing Rock Sioux’s tribal land, is also busy constructing Mariner East 2, a pipeline in the West Virginia, Ohio and Pennsylvania regions to carry crude oil to refineries in Philadelphia. ETP is also behind contentious projects like Bayou Bridge in Louisiana and Trans-Pecos in Texas.

But make no mistake: the implementation of these pipelines isn’t easy. Across the nation, energy companies are increasingly being accused of malicious, often illegal tactics to subdue resistance and keep protestors at bay. The violent events that took place during the DAPL occupation in North Dakota provide enough evidence of this.

RESISTANCE IS RISING

Yet even amid the companies’ growing use of scare tactics and secret maneuvers, citizens are ramping up direct action. People have braved the elements and matched the energy giants with their own brand of force, as residents nationwide turn to a mix of creative and traditional tactics to halt as many projects as they can.

For example, in late September, people participated in a “Hold the Line” rally in the Minnesota State Capitol to protest the Line 3 project. Among them was 70-year-old Minnesotan David Johnson, who said he would stand firm against large energy companies despoiling their state.

“I didn’t want to [be a speaker], but I love this land,” he said. “It’s a pretty isolated part of the county right on the edge of the vast wetlands. There’s lots of wildlife and very few people. I don’t want it threatened by the pipeline and their access roads and the potential leaks.”

Also in September, angry residents in Superior, WI, took more drastic and visible measures through direct action. Unicorn Riot reported that citizens overturned cars to block the way to the pipeline construction site, and chained themselves to the cars.

Meanwhile, in Pennsylvania, four residents filed a federal lawsuit against Energy Transfer Partners claiming that the company had violated their constitutional rights, harassed landowners and caused emotional distress to pipeline protestors.

“Since May of 2015, every day of my life has been affected by the plans to build this pipeline, and the lengths that Energy Transfer Partners will go to in the pursuit of profit,” said plaintiff Elise Gerhart, who lives on property that the pipeline will cross. “We’ve been needlessly harassed by agencies and violently threatened by individuals who’ve been intentionally incited and mobilized.”

Citizens are increasingly challenging the process by which energy companies seize private property for the use of pipelines, known as eminent domain, generating more controversy over the issue. And people-powered organizations like 350.org are leading campaigns to remove the source of funding for these projects by getting big banks to divest from fossil fuels.

Despite the overwhelming evidence that pipelines remain unreliable, prone to damage, disrepair and devastating leaks, energy companies continue to treat their bottom line as the only factor when making decisions. As a result, more and more citizens are stepping up to hold companies accountable for their actions, and for their lies, using all the legislative, judicial, financial, political, physical and other creative tactics at their disposal.

The latest expression of our corporate-controlled economic structure revealed itself last week when TransCanada, the Canadian-based energy giant that hoped to build the Keystone XL pipeline, filed a $15 billion lawsuit against the United States government for rejecting the pipeline’s construction, under guidelines set forth in NAFTA. The lawsuit presents the most recent evidence of the prioritization of corporate profits and interests over the rights of citizens in a sovereign, domestic nation. Yet instances like this will only increase with the passage of the Trans-Pacific Partnership.

In a statement accompanying the news, TransCanada announced that it had “undertaken a careful evaluation of the Administration’s action and believe there has been a clear violation of NAFTA and the U.S. Constitution in these circumstances.” The company also called the government’s decision to reject the pipeline “arbitrary and unjustified.”

Arbitrary and unjustified indeed. The pipeline, about 1,200 miles long, would have carried over 830,000 daily barrels of crude oil, or tar sands, from Alberta, Canada, to refineries on the Gulf Coast. It would have been built over precious aquifers throughout the midwestern U.S., namely the Ogallala Aquifer. It would also violate tribal sovereignty and potentially pose problems with eminent domain – where landowners would be forced to give up their land to a foreign corporation under the argument that it was somehow serving the “public interest.”

How dare we, as a free nation, come to the conclusion that this pipeline is bad for our country?

But here’s the real kicker: not only can TransCanada sue the U.S. government over the costs of the project, but the company is also allowed to seek an array of damages taking the form of “expected future profits.” What we have here is a foreign corporation suing the American taxpayers because their government made a democratic, sovereign, autonomous decision to reject a commercial project, on both ecological and economic grounds. The process is occurring in an extrajudicial forum completely outside the realm of U.S. domestic law, cites the non-profit Public Citizen, “in which three private attorneys are authorized to order unlimited sums of taxpayer compensation.”

“The amount is based on the ‘expected future profits’ the tribunal surmises that the corporation would have earned in the absence of the public policy it is attacking,” the group writes. “There is no outside appeal. Many of these attorneys rotate between acting as tribunal ‘judges’ and as the lawyers launching cases against the government on behalf of the corporations.” The private attorneys aren’t bound by conflict of interest or impartiality rules, and “if a government doesn’t pay, [the plaintiff] has the right to seize government assets in order to extract our tax dollars.”

In fact, the American taxpayers have already shelled out over $440 million as a result of these extreme investor-state systems included in many U.S. trade deals. Most of the lawsuits were filed under the domestic state tribunal guidelines outlined in NAFTA, which we can thank former President Bill Clinton for signing into law.

Prelude to the TPP?

The TransCanada lawsuit, in short, is a forerunner of what we can to happen should the TPP come into effect. When speaking in front of Nike, in Beaverton, Ore., Obama mocked individuals that claimed that the TPP and similar trade agreements were circumventing national governmental decisions.

“Critics warn that parts of this deal would undermine American regulation, food safety, worker safety, even financial regulation. This is…(chuckles)…they’re making this stuff up. This is just not true. No trade agreement is going to force us to change our laws,” said the president. He went on, “[The TPP] reflects our values in ways that frankly, some previous trade agreements did not. It’s the highest standard, most progressive trade deal in history. It’s got strong enforceable provisions on…child labor [and] on the environment…NAFTA was passed 20 years ago. That was a different agreement.”

One can argue about the meaning of the word “progressive,” but in the traditional American rhetoric, it’s probably not supposed to be used to describe a policy granting supranational judicial powers to corporate entities. To use it with a superlative is particularly unsettling. And “our values?” Please speak for yourself, Mr. President.

Obama’s statements contradict Public Citizen’s findings. Lori Wallach, head of the group’s Global Trade Watch, has indicated that “the actual language that TransCanada is using in this case…is the same language that, word-for-word, is replicated in TPP.” But more important to discuss are the implications of the corporate tribunal system that allows foreign multinational corporations to sue sovereign nations for making decisions that could, potentially, impact their profits. Businesses that didn’t get what they wanted with the passage of NAFTA have contributed to the secret crafting of the Trans-Pacific Partnership and its Atlantic twin, the Transatlantic Free Trade Agreement, or TAFTA.

It is the right of any free nation to dictate its own laws and guidelines – especially if those laws and guidelines help strengthen food and water safety, financial regulation, and environmental regulation. Supranational lawsuits like TransCanada’s directly contradict and infringe upon that right. As corporate leaders secretly tighten their grip on the economy, governments, and particularly the citizens of those governments, fear they will slowly become subservient to those corporate entities. More frighteningly, with the airtight, secretive trade agreements being crafted behind closed doors, there will be no legal or political recourse to reverse the decisions.